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In a bit of a David vs. Goliath, Philadelphia firm Berger & Montague helped secure a $554 million verdict this month in a class action suit against two companies that ran a government-owned nuclear weapons production plant until its closure in 1989. The jury in the federal district court in Denver found for nearly 12,000 property owners whose health and property values were affected by plutonium knowingly leaked on the plant site, according to court documents. The site is owned by the Department of Energy, but was run by two companies since its opening in 1952, Rockwell International Corp. and Dow Chemical Co. Although Rockwell and Dow were the defendants, the DOE paid the legal bills and will have to pay the final damages amount, which has yet to be entered by Judge John L. Kane Jr., Berger & Montague attorney David F. Sorensen said. According to Sorensen and lead counsel Merrill Davidoff of the same firm, the award could possibly be reduced to as low as about $354 million under Colorado law. The jury awarded $176.8 million for a nuisance claim and $176.8 million for a trespass claim, both of which were for compensatory damages, according to court documents. Attorneys in the case said that the law does not allow a double-damages award. It is still unclear whether the judge will view the two awards of $176.8 million as double damages or two separate awards for different claims, attorneys for both sides said. If the compensatory damages are found to be double damages and reduced to one award of $176.8 million, then the punitive damages, which totaled more than $200 million between the two companies, would have to be reduced under another Colorado law to no more than the compensatory damages, or $176.8 million. Davidoff said his side has strong arguments to collect the full amount in punitive damages, and the defense has a strong argument to have only one of the $176.8 million in damages awarded. The potential for pre-trial interest still exists, according to Davidoff, but no motions have yet been filed on the subject. The final demand in the 16-year-old case was for $248 million in compensatory damages and the same for punitive damages, Davidoff said. According to defense attorney David M. Bernick of Chicago-based Kirkland & Ellis, there were settlement discussions over the years. Davidoff said they were not substantive. He said the DOE was “determined to fight all of these cases and viewed them all as frivolous.” Cook v. Rockwell International Corp., filed in 1990, went to trial in October, then to the jury four months later for 17 days of deliberation, Sorensen said. The plaintiffs argued that Rockwell and Dow knowingly stored plutonium in barrels and cardboard boxes that rotted on the Rocky Flats plant site, allowing the windy environment to blow the plutonium across an approximate six-mile radius, Sorensen said. Rocky Flats and its surrounding area are approximately 17 miles outside of Denver. Although there was a 10-year, $7 billion clean-up project of the site – paid for by the DOE – that ended last year, the plaintiffs argued that animals, plants and other natural forces could bring the plutonium back to the surface, Sorensen said. “It’s more of a cover-up than a clean-up,” he said, adding that it was consistent with the Defense Department’s argument that the plutonium leak was not harmful. According to Bernick, he argued that a scientific investigation of the land concluded that there had not been, nor will there ever be, a health risk from the spilled plutonium. He said there was also no evidence of a decrease in property values. Sorensen said that while this site certainly isn’t Chernobyl, some studies that the plaintiffs performed have shown an increase in the incidence of cancer among area residents. People still live on the land, but some of the plaintiffs have moved away. The civil case began to form after an FBI raid of the site in 1989, according to Sorensen, who said Rockwell pled guilty in 1992 to violations of the Resource Conservation and Recovery Act and the Clean Water Act as part of a plea deal and paid an $18.5 million fine. Rockwell was the last company to run the facility until it was shut down in 1989. Dow ran it from 1952 to 1975. The class included all of those people who owned land in the designated area as of 1989. Previous landowners were not included, Sorensen said. Once the ball got rolling, it seemed to move uphill. The trial didn’t start for almost 16 years, and attorneys for each side look to several reasons why. There were three different judges since the case’s inception, and Kane fell ill shortly before the trial began, delaying things further, according to both sides. There were also issues of releasing classified documents during discovery. According to Davidoff, the DOE “completely stonewalled discovery” for almost six years citing that the department could not hand over classified documents. “It’s not really the fault of either side as much as the slowness of the court system,” Bernick said. He said there was extensive discovery in which the DOE handed over millions of documents to the plaintiffs. According to Davidoff and Sorensen, that was not done until the court issued a contempt charge against the department in 1995. According to the contempt order issued by Kane, DOE was ordered to produce the requested documents and pay attorney fees, costs and expenses related to the plaintiffs’ efforts to secure those documents. Sorensen said the firm wanted documents related to 2,600 pounds of missing plutonium. The DOE, according to Sorensen, said the plutonium was not missing, but rather an accounting problem was to blame. Sorensen said the firm eventually received more than 1 million documents with most of the text blacked out. The plaintiffs attempted to get class certifications for the plant employees and a medical monitoring class, but they were both denied, Davidoff said. Once the trial got under way, each side brought in several types of experts, including those in nuclear weapons plant operations, epidemiology and real estate appraisals. “We had a consistent theme of bolstering the credibility of our witnesses,” Davidoff said. The plaintiffs’ team informed the jury that most of their experts were unpaid, he said, adding that the defense experts were all paid. He said that ultimately made a big difference to the jury. Sorensen said his small firm that specializes in class actions was up against a major firm with an unlimited budget because the DOE was paying the bills. “They ran wild,” he said. Davidoff said it was the “most frivolous and expensive defense, possibly in class action history,” adding that the defense team filed so many motions that the file became the largest in the Colorado court’s history. There were originally 12 members of the jury, but one left before deliberations and another left during deliberations, according to Sorensen. With 10 jurors, each question had to be agreed upon by at least eight jurors. The jury was given a 30-page verdict sheet with more than 60 questions. Although the jury did not have to answer all of the questions, most of the responses were either 9-to-1 or 8-to-2, according to a trial transcript. A few were unanimous, according to the transcript. Colorado law prohibits the attorneys from approaching the jury after the trial, but the jurors are allowed to seek out the attorneys. According to the attorneys, that has not yet happened. Sorensen said he had a good feeling about the way deliberations were going because the jury asked questions about punitive damages and requested a calculator and Red Bull. Davidoff, who has been with the case since its inception when a local Denver firm asked for assistance, said this was an “extremely hard case” that he is “exhilarated” to see come to a conclusion. “You can never get full justice for what was done for that community,” he said. “But at least we got some justice,” Sorensen said that the case has gone from frustrating, to disappointing, to never-ending, to vindication. “It’s not the end of the story, probably, and I understand,” he said. “But a jury has spoken.” Bernick said he plans to appeal. “It was apparent from the verdict that some jurors wanted to send a message to the government,” he said. According to Bernick, the jurors were told that the DOE would have to pay the damages. Berger Montague was the lead counsel for the plaintiffs. They were joined by Waite Schneider Bayless & Chelsey of Cincinnati, Ohio, and the Denver firm Silver & DeBoskey. Louise Roselle of Waite Schneider was co-lead trial counsel with Davidoff. Both Rockwell and Dow are still in business in some capacity. The trial began in early October 2005, and the jury came back with a verdict on Valentine’s Day of this year.

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